Honorable Bert Ford 

Administrator 

Texas Liquor Control Board 

Austin, Texas 

Opinion NO. o-4898 

Re: Under Article 1, Section 44 of 

the Texas Liquor Control Act is 

the judgment ordering the sale 

of a seized vehicle a necessary 

part of the judgment of convlction of the defendant, and related questions? 

Dear Sir: 

Your letter of October 1, 1942, requesting the oplnion of this department on the questions stated therein reads 

a3 follows: 

"Article I, Section 44, of the Texas Liquor Control Act reads as follows: 

"'It is further provided that if any wagon, 

buggy, automobile, water or air craft, or ang 

bther vehicle is used for the transportation of 

any llllclt beverage or any equipxe:?t designed 

to be used for Illegal manufacturing of illicit 

heveragez, or any material of any kind which is 

to be used in the manufacturing of illicit beverages, such vehicle together with all such beverages, equlpment,or material shall he seized without warrant by any representative of the Board 

or any peace officer who shall arrest any person 

in charge thereof. Such officer shall at once 

proceed against the person arrested and all principals, accomplices, and accessories to such unlawful act, under the provisions of law, In any 

court having competent jurisdiction; but zald 

vehicle or conveyance shall be returned to the 

owner upon execution by him of a good and valid 

bond, with sufficient sureties in a sum double 

the appraised value of the property, which said 
Honorable Bert Ford - page 2 o-4898 

be conditioned to return said property to the 

custody of said officer on the day of trial to 

abide judgment of the court, The court upon conviction of the person so arrested shall order the 

alcoholic beverages disposed of as provided 

in this Act, and unless good cause to the contrary 

Is shown by the owner shall order the sale by public auction of the property seized, and the officer 

making the sale, after deducting the expenses of 

keeping the property, the seizure, and the cost of 

the ssle, shall pay all liens, according to priori.- 

ties, which are established by intervention or 

otherwise at said hearing or In other proceedings 

brought for said purpose, as belt-g bona fide and 

as having been cr,eated without the lien or having 

any notice that the carrying vehicle was being 

used or was to be used for ill.egal transportation 

of liquor and shall pay the halance of the proceeds to the Board to be allocated as permit fees. 

All liens against property sold under this Section 

shall be transferred from the property to the proceeds of its sale. If, however, no one shall be 

found claiming the team, vehicle, water or air craft, 

or automobile, the taking of the zame, with dezcrlption thereof, shall be advertised in some newspaper 

published In the city or county where taken, or if 

there be no newspaper in such city or county, any 

newspaper having circulation in the county once a 

week for two (2) weeks and by handbills posted inthree (3) public places near the place of seizure, 

and if no claimant shall appear with ten (10) days 

after the publlcatlon of the advertisement, the 

property shall be aold and the proceeds after deducting the expenses and costs shall he paid to the 

Board to be allocated as permit fess.' 

"The p~ovizions of Sectlon 44 ebove quoted are 

not clear as to whether the judgment of the court MS 

to sale of the zelzed vehicle muzt be a part of the 

judgment of conviction, and it 1s further not clear 

as to when said judgment of forfejtcre should be 

entered. Your valued opinion is requested In response to the following questions: 

"1 . Is judgment ordering the zale of the z&red 

vehicle a necessary part of a ju3gment of conviction 

of the defendant? 

"2 . If judgment as to sale 1s not a necessary 

part of the judgment of the conviction, then would 
Honorable Bert Ford - page 3 o-4898 

a judgment ordering sale be valid if entered at any 

time during the term of court in which the defendant 

has been convicted? 

"3 . If not answered In response to the previous 

questions submitted, what limitation of time would 

prevail after conviction as to judgment of forfelture of the seized vehicle?" 

In the first paragraph on page 2 of your letter you 

inquire as "as to when said judgment of forfeiture should be 

entered". The proceeding involved Fn the disposition of the 

property seized under Article 1, Section 44 oft the Texas Liquor 

Control Act Is not a proceeding to forfeit. We direct your 

attention to the langua e of the court in the case of Pharizs 

v. Klmbrough 118 S. W. 7 2d) 661, where the court Is preferring 

to the same kFnd of proceeding as Fs involved here and says: 

"The proceeding Is therefore not to forfeit; but to enforce 

the forfeiture thst has resulted under the statutes of the 

conviction of unlawful transportation of intoxicating liquor, 

in the commission of whLch offense the automobile was used f, 

. . . . 

It will be noted that Article 1, Section 44 of the 

Texas Liquor Control Act, supra, expressly provides in part: 

"The court upon convlction of the person so arrested shall 

order the alcoholic beverages disposed of as provided In this 

Act and unless good cause to thecontrary Is shown by the owner, shall order the sale by public auction of the property 

seized, and the officer making the sale, after deducting the 

expenses of keeping the property; the seizure, and the cost 

of the sale, shall pay all liens, according to priorities, 

which are established by lnterventlon or otherwise at said 

hearing or In other proceedings brought for said purpose, as 

being bona fide and as having been created wIthout the lien 

or having any notice thatthe carrying vehicle was being used 

or was to be used for Illegal transportation of liquor and 

stall pay the balance of the proceeds to the Board to be allocated as permit fees. All liens against property sold under this Section shall be transferred from the property to 

the proceeds of its sale." 

We do not think that the order of sale by public 

auction of the property seized upon conviction of the person 

so arrested of the criminal offense constitutes any part of 

a judgment of conviction of the defendant. The Acts which 

are defined and made criminal,offensez under the Texas Liquor 

Control Act are offenses of a misdemeanor grade. 

Article 766 Vernon's Annotated Code of Crlmlnal Pro- 
. . 

r . 

Honorable Bert Ford - page 4 o-4898 

cedure defines the constituents and requirements of a final 

judgment in felony cases. While the first 8 subdivisions of 

Article 766, supra, defining the constituents and requirements 

of a final. judgment apply~to judgments in misdemeanor cases, 

subdivisions 9 and 10, requiring the judgment to adjudge the 

defendant guilty and specify that he be punished as then determined by the jury, do not apply. However, in lieu of subdivisions 9 and 10, Article 783, Vernon's Annotated Code of 

Criminal Procedure provides: "When the defendant is only 

fined the judgment shall be that the State of Texas recover 

of the defendant the amount of such fine and all costs of the 

prosecution, and that the defendant, If present, be committed 

to jail until such fine and costs are paid; or if the defendant 

be not present, that a capias forthwith issue, commanding the 

sheriff to arrest the defendant and commit him to jail until 

such fine and costs are paid; also, that execution may issue 

against the property of such defendant for the amount of such 

fine and costs." 

Article 784, Vernon's Annotated Code of Criminal Procedure provides: "If the punishment is any other than a fine, 

the judgment shall specify it, and order it enforced by the 

proper process. It shall also adjudge the costs against the 

defendant, and order the collection thereof as in other cases." 

As above pointed out it will be noted that Article 1, 

Section 44 of the Texas Liquor Control Act imposes a duty upon 

the courtupon conviction of the person so arrested unless good 

cause to the contrary Is shown by the owner, shall order the 

sale by a public auction of the property seized. It will be 

noted that the statute does not specify any time that such order of sale shall be made except upon the convictFon of the 

person arrested. 

In view of the foregoing we answer your question,as 

follows: With reference to your first question it Is our oplnIon that the order of sale of the seized vehicle Is not a necessary part of the judgment of convlctlon of the defendant. 

In reply to your second question you are advised that 

it is our opinion that an order of sale of the seized property 

by the court upon conviction of the person arrested would be 

valid at any time entered during the, term of court in which 

the defendant has been convicted, provided, the seized property 

is still in the possession of the court or the seizing officers?, "unless good cause to the contrary is shown by the 

owner. It is our further opinion that the court could enter 

a valid order of sale of the seized property upon conviction 

of the person arrested at any term of court, provided, said 

property still remains in the possession of the court or seizing 
. . . . 

Honorable Bert Ford - page 5 O-4898 

officers, 

owner. " 

"unless good cause to the contrary is shown by the 

We think that our answers to your first two questions 

necessarily answer your third question. 

Trusting that the foregoing fully answers your inquiry we are 

Yours very truly 

ATTORNEX TENERAL OF TEXAS 

By s/Ardell Williams 

Ardell Williams 

Assistant 

AW:PO:wc 

APPROVED OCT 14, 1942 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman